On behalf of the petitioners-appellants, the cause was
submitted on the briefs of James O. Moermond of Stilp & Cotton,
Wausau.

Respondent

ATTORNEYS:

On behalf of the respondents-respondents, the cause was
submitted on the brief of J.B. Van Hollen, attorney general,and David C. Rice, assistant attorney general.

2007
WI App 249

COURT OF APPEALS

DECISION

DATED AND FILED

October 30, 2007

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2007AP692

Cir. Ct. No.2005CV157

STATE OF WISCONSIN

IN COURT OF
APPEALS

Lloyd Frank Logging and Liberty Mutual Insurance Company,

Petitioners-Appellants,

v.

Charles J. Healy and Labor and Industry Review Commission,

Respondents-Respondents.

APPEAL
from an order of the circuit court for Vilas County:NEAL A.
NIELSEN iii, Judge.Affirmed.

Before Hoover, P.J., Peterson and Brunner, JJ.

¶1HOOVER, P.J. Lloyd Frank Logging and
its insurance carrier, Liberty Mutual Insurance Company (collectively, Lloyd
Frank), appeal an order of the circuit court affirming a decision by the Labor
and Industry Review Commission.The
Commission concluded that Charles Healy was an employee of Lloyd Frank’s
because he did not fulfill the statutory definition of an employer.Lloyd Frank argues that Healy was an employer
primarily because he purchased a worker’s compensation insurance policy.We reject Lloyd Frank’s argument as contrary
to the statutes and, accordingly, affirm the order.

Background

¶2In December 2000, Healy entered an agreement with Lloyd Frank
to cut trees.The job was conditioned on
Healy purchasing a worker’s compensation insurance policy.He did, but cancelled it after Lloyd Frank
told him it was unnecessary.However,
Healy maintained a policy for his sole proprietorship, Charles Healy Four
Seasons.It is unclear why Healy had
this policy; he never employed any individual at Four Seasons other than
himself.Healy was injured March 9,
2001, while cutting trees for Lloyd Frank.

¶3Lloyd Frank initiated administrative proceedings for a
determination whether Healy was entitled to worker’s compensation
benefits.The administrative law judge
determined that although Healy was an independent contractor, he was still an
employee, subject to the Worker’s Compensation Act.

¶4Lloyd Frank petitioned the Commission for review, arguing
that because Healy had purchased a worker’s compensation policy for his own
business, he was an employer.SeeWis. Stat. § 102.05(2).[1]Therefore, as an employer, Healy could not
also be an employee.SeeWis. Stat. § 102.07(8m).[2]The Commission affirmed the ALJ’s decision
and further determined that because Healy never had any employees, he was not
an employer.

¶5Lloyd Frank petitioned the circuit court for review.The court upheld the Commission’s
determination that Healy was not an employer because he never had employed
anyone and affirmed the Commission decision.[3]Lloyd Frank appeals.

¶7We are not bound by an agency’s interpretation of a statute.Id.We should, however, defer to an agency’s
interpretation in certain situations.Id.It is well-known that there are three levels
of deference—great weight, due weight, and no weight—based on various
factors.Seeid. at
659-60.Here, the circuit court
concluded the Commission was entitled to due weight deference; Lloyd Frank
urges us to undertake de novo review.We
need not decide which level is appropriate in this situation because even with
a de novo review, we would affirm the Commission’s decision.

¶8We start with Wis.
Stat. § 102.05(2), which states, in relevant part: “Any employer
who shall enter into a contract for the insurance of compensation, or against
liability therefor, shall be deemed thereby to have elected to accept the
provisions of this chapter….”Lloyd
Frank emphasizes Healy’s purchase of a worker’s compensation policy to assert
he “elected to accept the provisions of this chapter” and is therefore an
employer under the Act.

¶9However, the statutory interpretation should not begin with
the phrase “enter into a contract” but, rather, with the phrase “[a]ny
employer.”For purposes of the worker’s
compensation policy, “employer” is explicitly defined in Wis. Stat. § 102.04.The definition includes every person who
employs three or more employees and every person who “usually employs less than
3 employees, provided the person has paid wages of $500 or more in any calendar
quarter for services performed in this state.”SeeWis. Stat. § 102.04(1)(b)1-2.

¶10Lloyd Frank makes no attempt to argue Healy is an employer as
defined by statute.Instead, it cites Stapleton
v. Industrial Commission, 249 Wis. 133, 23 N.W.2d 514 (1946) (Stapleton
I), to argue that because Healy purchased a worker’s compensation
policy, he is properly considered an employer.

¶11The court in Stapleton I wrote, in part:

The purpose of sec. 102.04 (3) [1943] is to permit
any person, firm, or private corporation who has less than three employees, or
otherwise does not come under the act, to elect to come under the act ….What it does is to permit such person, firm,
or private corporation to elect to become subject to the act by filing with the
commission a written statement that he accepts the provisions of this chapter,
or he may elect to become subject to the act by entering into a contract for
the insurance of compensation.

Stapleton I, 249
Wis. at 139.Lloyd Frank essentially
reads Stapleton to say the statutory purpose “is to permit any
person … to elect to come under the act … by entering into a contract for the
insurance of compensation.”

¶12We do not read Stapleton I quite as broadly as
Lloyd Frank.For one thing, the case is
distinguishable.The supreme court
ultimately determined Stapleton was an employer subject to the act because he
had three employees at one point in time.SeeStapleton v. Industrial Comm’n, 249 Wis. 133,
139b, 26 N.W.2d 677 (1947) (Stapleton II).Thus, we could say that any extraneous
language in Stapleton I, like that cited by Lloyd Frank, was
merely dicta and was implicitly overruled by Stapleton II.

¶13However, we think a better explanation is that “person” refers
to an individual as an employer as contrasted with a firm or corporation
as employers, and such an interpretation finds support in the statutory
language.Wisconsin Stat. § 102.04(3) (1943), stated, in relevant
part:

Every person, firm and private corporation … to
whom subsection (2) is not applicable, who has any person in service under
any contract of hire … and who, at or prior to the time of the injury …
shall, in the manner provided in section 102.05, have elected to become subject
to the provisions of this chapter….(Emphasis added.)

This provision is roughly
equivalent to modern § 102.04(1)(e).[4]Wisconsin
Stat. § 102.05 (1943) was titled “Election by employer,
withdrawal” and subsection (3) stated, in relevant part: “Any employer
who shall enter into a contract for the insurance of compensation, or against
liability therefore, shall be deemed thereby to have elected to accept the
provisions of this chapter….”(Emphasis
added.)This is roughly analogous to
modern Wis. Stat. § 102.05(2),
quoted above.Seesupra,
¶8.

¶14Read in context, then, it is apparent that when the Stapleton
I court and Wis. Stat. § 102.04(3)
(1943) refer to any “person, firm, and[/or] private corporation,” they are
describing types of entities that may be employers.Nothing about the court’s decision or the
statute implies that individuals who are not also employers may opt into the
Worker’s Compensation Act’s jurisdiction.Ultimately, Lloyd Frank is bootstrapping, arguing that because Healy
“bought a worker’s compensation policy, he is considered an employer under the
Act,” even though to elect to come under the Act by purchasing a policy, Healy
had to be an employer in the first place.

¶15The Commission properly started its analysis by asking whether
Healy was an employer.Because he never
had individuals in his service as employees—and he does not otherwise fulfill
the statutory definition of an employer—he is not an employer, the worker’s
compensation policy notwithstanding.The
Commission correctly concluded that because Healy is not excluded from the
definition of employee, he is entitled to benefits from Lloyd Frank.[5]

By
the Court.—Order affirmed.

[1] All
references to the Wisconsin Statutes are to the 2005-06 version unless
otherwise noted.

[2]Wisconsin Stat. § 102.07(8m)
states, in relevant part, that any “employer who is subject to this chapter is
not an employee of another employer for whom the first employer performs
work….”

[3] The
court also affirmed the portion of the decision relating to Healy’s status as
an independent contractor, but that part of the Commission’s decision is not
before us on appeal.

Every person to whom pars. (a) to (d)
are not applicable, who has any person in service under any contract of hire,
express or implied, oral or written, and who, at or prior to the time of the
injury to the employee for which compensation may be claimed, shall, as
provided in s. 102.05, have elected to become subject to the provisions of this
chapter, and who shall not, prior to such accident, have effected a withdrawal
of such election.

[5] Lloyd
Frank also argues that Healy stipulated or conceded he was an employer.Whether facts fulfill a statutory standard is
a question of law.State v. Disch,
129 Wis. 2d 225, 234, 385 N.W.2d 140 (1986).Thus, whether Healy is an employer or
employee under the Worker’s Compensation Act is question of law.We are not bound by the parties’ concessions
of law, Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d
712 (1997), particularly a concession based on an erroneous interpretation of
the law.Our attitude might differ if
this issue were raised in the context of an issue preclusion argument, but no
such theory has been raised, and we will not develop such an argument for Lloyd
Frank.M.C.I., Inc. v. Elbin,
146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988).